Copley v Beaudesert Shire Council & Anor [1993] QPEC 93

/flii' State Reporting BureiUi3 TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is Yested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT ✓ JUDGE O' SULLIVAN p & E Appeal No 239 of 1993 GREGORY CHARLES COPLEY and BEAUDESERT SHIRE COUNCIL and XYZ TIMESHARE CORP PTY LTD Appellant Respondent Respondent by Election I . ~~ BRISBANE .. DATE 14/12/93 JUDGMENT \i, _________________--~-.'."~I~Ii=-e~le':-h~o~n'.:e,~·(:0~7)~2;2~7~4~36:0~.;F::ac:s,:.m:il:e.~·(~0;7)~2~2;7~5;53~2~--- \' 41h Floor. The Law Courts, George Street, Brisbane. Q. 4000 P I·: -- 1 of 18 -- 141293 T 1/JMK M/T CMS31/93 (O'Sullivan DCJ) HER HONOUR: I publish my reasons. HER HONOUR: The formal orders that I make today are: I dismiss the appeal; I reserve the question of costs for hearing at 9.15 a.m. on Tuesday, 8 February 1994. 2 JUDGMENT 10 20 30 ( 40 50 60 -- 2 of 18 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E No. 239 of 1993 Before O'SULLIVAN DCJ [COPLEY V BEAUDESERT SHIRE COUNCIL & ANOR] GREGORY CHARLES COPLEY (Appellant) -and- BEAUDESERT SHIRE COUNCIL (Respondent) -and- XYZ TIMESHARE CORPORATION PTY LTD Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): (Respondent by Election) REASONS FOR JUDGMENT 14th December 1993 Objector appeal - proposed approval rezoning "Rural" to "Residential Low Density" Issues Conformity Strategic Plan, Flooding, traffic, roads, Number of rezoning approvals in Res. Low Density Zone Mr G Copley (Appellant appearing for himself) Mr M Hinsen (Respondent) Mr T Trotter (Respondent by Election) Mr G. Copley (Appellant appearing for himself) McAuliffe and Associates (Respondent) steindl, Bradley & Associates (Respondent by Election) 25,26,27,28,29 October 1993 1,3,4,8,15,23 November 1993 2 December 1993 -- 3 of 18 -- IN THE PLANNING AND COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 239 of 1993 BETWEEN: GREGORY CHARLES COPLEY Appellant COUNCIL OF THE SHIRE OF BEAUDESERT Respondent AND: XYZ TIMESHARE CORPORATION PTY LTD Respondent by Election REASONS FOR JUDGMENT O'SULLIVAN D.C.J .. Delivered the 14th day of December 1993 This is an Objector appeal against a proposed approval of a rezoning of land containing 24.295 hectares described as Lot 2 on RP 223791 Parish of Moffatt, County of Ward and located at Stockleigh Road, South Maclean ( "the land") from the "Rural" Zone to the "Residential Low Density" Zone ("the proposal"). The Respondent by Election had proposed a subdivision as part of a Combined Application to the Respondent, but this was refused. The proposed subdivision is for 41 lots of various sizes, ranging from 4000m 2 to 1.1 hectares. The disputed issues in the appeal were conformity with the Strategic Plan of the Respondent and flooding. At the hearing, -- 4 of 18 -- 2 leave was given to include two further disputed issues, namely, traffic a nd th e state of the roads, and the number of rezoning approvals to the "Residential Low Densi· ty" Zone in each of four nominated estates in the Beaudesert Shire. Town Planning issues: The land is included partly in the "Rural "Preferred Dominant Land Use Designation in the Strategic Plan and partly in the "Rural Residential" Designation. Mr Spark, who lives at Teviot Road, Jimboomba, 6-8 kilometres from the land, was particularly concerned about the rezoning of the part of the land which is designated "Rural". He believes that existing and prospective residents should be able to assume with some degree of confidence that land zoned "Rural" would remain so, particularly given that it is generally flood prone and comprises only a very small proportion of total land area when compared to the "Rural Residential" Designation. The difficulty is, as he acknowledged, that the land is designated partly "Rural" and partly "Rural Residential". Mr Spark, the Appellant, and two other residents who gave evidence, Mr Spark and Mrs McKee, were concerned that the proposal "jumps two zones", and reasonable expectations would be of a prior rezoning to "Rural Residential A" or "Rural Residential B". Whilst I can understand their concerns, I -- 5 of 18 -- 3 consider that they paid too little regard to the provisions of the relevant provision of the Strategic Plan. Objective 5 (1) (b) of the Strategic Plan Objectives for Rural Residential Areas is as follows: "Rezoning applications for residential low density and rural residential development within the areas designated as rural-residential on the map will be favourably considered by the Council where they accord with the ·Council's determination on a staged development programme relating to the provision and adequacy of public utility services, including water supply and drainage where appropriate, and external road networks capable of servicing the particular stage of development". Objective 5 (2) is as follows: " (a) The Council will favourably consider applications for rezonings to the Residential Low Density Zone within the area designated as rural residential on the strategic plan map only in locations that can be provided with a reticulated water supply, drainage, electricity and sealed roads. (b) Rezonings for residential low density development will be favoured in those areas considered by the Council to support the orderly growth of the hierarchy of urban centres detailed in clause 3 ( 2) - Urban Areas." Mr Heathwood, the Town Planner who gave evidence on behalf of the Appellant, considered that the proposal ought to be refused for a number of reasons, including lot sizes, prematurity, and visual amenity. He agreed that the proposal conforms with Objective 5 (1)(a) of the Strategic Plan. He also agreed that the proposal should not be refused because of any conflict with Objective 5 (2) (b). I find that the proposal conforms with the relevant objectives in the Strategic Plan. -- 6 of 18 -- 4 Lot sizes: The minimum area in the "Residential Low Density" Zone is 2,500 m2 • The minimum area in the "Rural Residential A" Zone is 1. 2 hectares. The minimum area in the "Rural II Zone was increased from 20 hectares to 100 hectares in September 1991. Lot sizes are not specifically nominated in the Objectives for Rural Residential Areas in the Strategic Plan. Proposed Condition (b} of the proposed approval is as follows "Development achieving a 5000 m2 average lot size". Proposed Condition ( 1} of the proposed approval includes the following: "Proposed Lots 1 2 to 19 will still be required to maintain minimum lot size (4000m 2 } " The Appellant and his witnesses considered that there is an inconsistency between the lot sizes in the proposal and the lot sizes in the surrounding area. Mr Heathwood said that the proposal is for an average half hectare development, which will be surrounded by lots zoned "Rural II which are around 2 4 hectares and land in the "Rural Residential A" Zone which has lots between two and five hectares. Mr Brannock, the Town Planner who gave evidence on behalf of the Respondent by Election, considered that the lot sizes in the area range from 1 hectare to 5 to 6 hectares. Ms Crompton, the Respondent's Shire Planner, agreed that the proposed lots are smaller than the existing rural residential lots in the area but essentially there is the same form of land use. She considered that the permitted and permissible uses in the "Residential Low Density" Zone will not conflict with the permitted and permissible uses in the "Rural Residential A" Zone. She was of the view that the Strategic Plan is trying to provide for a mix of lot sizes; it is not trying to suggest that a -- 7 of 18 -- 5 particular lot size should be located in a particular part of the Shire, so long as it can be serviced adequately, and as long as it reinforces the hierarchy of urban centres. Mr Brannock considered and I accept, that it is quite clear that the Rural Residential Designation is meant to be for all allotments ranging from .25 hectares to 4 hectares. He referred to lots in the north of the Shire generally ranging from about 2,500 square metres up to 5 to 8 hectares. He considered that the proposed lots would fit most comfortably within that type of Rural Residential setting and it would not be out of the ordinary in the northern part of the Shire. He considered that because of the abundance of Rural Residential zoned allotments in the area and the topography of the land the proposed lots would fit in with the general character of the area. I consider that the proposed lots are in conformity with the Respondent's Strategic Plan and the issue of lot sizes does not warrant referral of the proposal. Prematurity: Mr Heathwood considered that prematurity is the main problem he had with the proposal. It is premature because it is not a natural extension of the services. It does not accord with a staged development plan of any sort. Mr Heathwood looked for indications that the land would be a site for early development, and found none. He noted that there is nothing in the provision of the existing services that would identify this site as a place for early development. Ms Crompton gave evidence that the Respondent does not have a formal staged development program for Residential Low Density development. Her understanding is that the reference to a staged development program in Objective 5 ( 1) (b) relates to public utility services. The Objective requires rezonings for -- 8 of 18 -- 6 Residential Low Density to be on land that can be serviced with constant flowing water supply and sealed roads. Mr Brannock was not aware of any staged development plan but considered that one was not necessary if the nominated services were available. I find that the proposal is not premature. Visual amenity: Mr Heathwood considered that although amenity is not specifically mentioned in the relevant Objectives in the Strategic Plan, it is nevertheless relevant by virtue of s. 4.4 (2) of the Local Government (Planning and Environment) Act (1990-1992). Mr Heathwood postulated that the houses would be at the top of the block near the ridge and viewed from the lower western side of the land these houses will be on the skyline and will have a fair visual impact from that point of view. He illustrated this by reference to a photograph of the existing house. He was concerned that 8 additional houses would be visible on proposed Lots 11 to 19. He was concerned about the view from the other side of the river, which he described as "trees among the houses". If the land were zoned "Rural Residential A", only three houses would be visible. He considered that from Mr Copley's residence the row of houses will not appear, and that Mr Copley will probably not be able to see any part of the land from his property. Mr Hea thwood considered that there is about a kilometre from the nearest point of Mr Copley's property to the nearest point on the land. Mr Copley pointed out that he can see the Doyle house in the distance from his balcony, but he agreed that the visual aspect of the proposal from his property would not be a problem. Mr Copley was concerned about the proposed road on the land being built across adjoining lots which he considered will be -- 9 of 18 -- 7 subdivided in the near future, and thus the road will come towards his property. Mr Heathwood was also concerned about the visual amenity of residents due south of the land, at the end of Smailes Road. They are about 400 metres distant. The more intensive develop- ment will change the nature of their outlook. He was also concerned about other residents in Smailes Road, 500-600 metres away. I note that some of these residents are within 100 metres of each other. Mrs McKee, who lives at Lot 18 Smails Road was concerned about "overlooking cement and tiles and bricks rather than green ridges, trees and sticks." She expected the land to be rezoned "Rural Residential A" as development progressed in keeping with the orderly growth of the area. Proposed Condition (c) of the proposed approval is as follows: "Redesign of lot layout in the vicinity of Lots 23-29 so as to provide a more suitable interface with adjacent Rural Residential A allotments". Ms Crompton considered that the proposed development will not present a vastly different visual image from a Rural Residential A development. Currently some of the houses in the area are built up close to the road and appear to be relatively close together. I do not accept the evidence of Mr Copley that the proposed rezoning will lead to the land" going down to suburbia". I find that the proposal (including the Conditions proposed by the Respondent) will not affect the visual amenity of the area to an unacceptable degree. -- 10 of 18 -- 8 Residential Low Density zoning: Mr Heathwood expressed the view that Residential Low Density Development is "wasteful of land and resources", and he described the expressed intention of the Respondent to provide for this land as "regrettable". He agreed that it was crystal clear that the Respondent desires to create residential low density in this area. He acknowledged that the Strategic Plan anticipates large amounts of low density residential land in the northern part of the Shire. Traffic and state of the roads: Mr Heathwood was concerned that the land is not serviced by any of the rural local roads nominated in the Strategic Plan. The land is not serviced by a state highway, arterial road or rural collector road and it is thus not consistent with Objective 5 (4) of the Strategic Plan; there is no help in finding an indication of the land being part of a staged development plan. He considered that Stockleigh Road would need to be of the same standard as the internal roads in the proposed subdivision, namely 8 metres wide, with kerbing and channelling. Mr Heathwood relied on Table 5.4 in Part B of the Strategic Plan and considered that the standards imposed in that Table for new roads ought to be imposed on Stockleigh Road. He acknowledged in cross-examination that some part of the expense of upgrading -- 11 of 18 -- 9 Stockleigh Road would be borne by the general revenues of the Shire. He acknowledged that the proposed approval includes Proposed Condition ( f) that "Provision of a Connection Road contribution at the rate current in Council's Policy at the time of payment. A current rate of $3,125/lot applies". Mr Copley gave evidence, including photographic evidence, of the state of various roads in the area. This included Arthur Road, Chambers Flat Road and Camp Cable Road. However, these roads which will not provide the usual access to the land. I find that the state of roads in the area is not such as to warrant refusal of the proposal. Availability of Residential Low Density zoned land:- This disputed issue concerned four estates with a "Residential Low Density" zoning "Pub Lane", "Spring Mountain", "Pine Forest" and "Flagstone Creek" ("the four estates"). Details of the approvals were provided by Mr Heathwood, from information supplied by Ms Crompton, and show approximately 5,000 lots approved. Mr Heathwood used these approval figures and a population prediction of 4.77% for the Shire, to arrive at his conclusion that the increase in population could be accommodated for 6 years in the four estates. -- 12 of 18 -- 1 0 Mr Heathwood also undertook a theoretical exercise based on Table 7.8 in Part B of the Strategic Plan, and made certain assumptions about the split between low density residential lots and larger rural residential lots, and thus arrived at a figure for land supply of 12 years. Ms Crompton considered that the assumptions are too broad and are inaccurate, and that the analysis is flawed because it wrongly assumes that the population growth is the same for the whole of the Shire. Mr Heathwood conceded in cross--examination that the northern part of the Shire has a higher growth rate than other parts. Ms Crompton referred to Australian Bureau of Statistics figures which showed a growth rate of 6.3% for the whole of the Shire and 8.7% for the northern part of the Shire. Mr Brannock considered that demand may be met for something of the order of 3 to 4 years, in contrast to Mr Heathwood's 6-12 years. Ms Crompton pointed out that there is nothing in the planning documents of the Respondent which talks about an appropriate level of supply for land zoned "Residential Low Density". I consider that the availability of Residential Low Density zoned land in the four estates is only one aspect of town planning need other factors such as locational characteristics, choice, attributes of the land, timing or availability are also relevant. -- 13 of 18 -- 11 I find that the evidence concerning the four estates is not such as to warrant refusal of the proposal. Flooding: Proposed Condition (m) of the proposed approval is as follows: "Provisions of a copy of the Final Plan of Survey for each allotment, on which the designated Building Envelope has been drawn to scale with dimensioned ties to the property boundaries. The Building Envelope shall be determined by the Applicant to the satisfaction of the Shire Engineer and shall have regard to slope, Stability, Retention of Trees, access to Prevailing Breezes and Light, Flooding, Effluent Disposal, Local Stormwater Runoff and Vehicular Access". Mr Heathwood' s evidence concerning possible flooding was not entirely clear. He conceded that if the flood line is secure then it is not a problem if some of the land goes under. At one point in his evidence he said that he was concerned that the advantage of large blocks is largely lost because there is a very limited place to build, but he thereafter conceded that there is ample room on each of those allotments to satisfactorily construct a dwelling it in terms of the Council's By-laws about building above flood lines. Mr Heathwood conceded that if line 1 on the map prepared by Mr Purcell (the Surveyor who gave evidence on behalf of the Appellant) corresponds to the 1974 flood level, there is simply no reason in planning terms why these blocks cannot all be developed from a flooding point of view. Mr Heathwood agreed that it is accepted sound town planning practice for buildings to be located above the QSO flood level. -- 14 of 18 -- 12 Mr Goakes, the Engineer who gave evidence on behalf of the Respondent by Election, said that for Lots 7-1 o he checked whether there was sufficient area, and found that there is an area greater than 1200m 2 which is free of flood. He considered that there is ample room, even for a Q100 flood. Mr Thoms, the Surveyor who gave· evidence on behalf of the Respondent by Election, said that in the drawings his firm prepared there is 1000-1200 m2 above the flood line, and a 30 metre depth from the road alignment to the flood line. The Respondent and the Respondent by Election contended that the 197 4 flood line was at 25.012 AHD. This was based on the calculation put forward by Cameron McNamara in its report commissioned by the Respondent before the 1974 flood and then by the State Government after the flood, and tabled about 18 months after the flood. Mr Bauer, the Respondent's Deputy Shire Engineer, explained that in their report Cameron McNamara refer to three levels at the gauge - one a Shire reading, one obtained from the Main Roads Department and the other from local residents. Mr Goakes considered that the big value of the report was that a flood profile was drawn. He was impressed by the evidence gathered by Cameron McNarnara including their use of the resources of the Shire and the Co-ordinator-General's Department and the confirmation by aerial photographs afterwards. In their report they state that after the flood they used Council officers to check flood levels and they interviewed quite a few local residents and were confident they had an accurate level of the flood profile. Mr Thoms undertook a field survey with 60 observations, and plotted the 25.012 AHD line on the subject land. Mr Purcell agreed with the location of his line. He said that the level he took at the gauge at Site B was 24.92, which he described as" very close to 25.012 metres AHD". -- 15 of 18 -- 1 3 Mr Purcell said that he was unable to agree that the level of 25.012 AHD was the level of the 1974 flood with any confidence because he had seen conflicting information given to him by his client. Mr Purcell was confident of his 25.012 AHD line. He conceded that there was an error in the contours on the plans lodged with the Respondent, which was especially important for the 20 and 25 contours. He explained that the only way the contours can be verified is by a full digital terrain model survey, which had not yet been done, and would normally be done at the subdivision stage. He made it clear that he did not rely on the contours in arriving at the 25.012 AHD flood line. Following the Appellant raising the issue of the green peg and after receiving the report of Mr Purcell, Mr Thoms instructed an employee, Mr Churchward, to do a further check. Mr Churchward went on to the nearby Doyle property and was told where the 1974 flood had gone to, and then transposed this level onto the land and this was at 24.739 AHD. Mr Copley considered that the proposed approval should prohibit development below 28 AHD. His evidence was that the 1974 flood line is not at 25.012 AHD, but rather at 27.760 AHD, which is close to the location of a green peg on the land. This peg has written on it, in two places, "' 74 flood". I accept the evidence of Messrs. Gay and Shearer concerning the origin and placement of this green peg. I found Mr Copley's calculations of the 1974 flood line hard to follow. I understood his methodology, which he sought to illustrate in several graphs, to be that he started with a level at McLeans Bridge and added the rise of 4510ml referred to by a local resident, Mr Leerson, who gave evidence at the hearing. The calculation of the starting level relied on comments by Mr Trace (on behalf of the Bureau of Meteorology) about the water being three feet over the bridge at 6.30 p.m. on 26 January. I -- 16 of 18 -- ff!Ji~f,}Q_'fiJt;, •! I ,,.. \ \\ \ \ 1 4 \,__ ··,......_________,,,,/ ;:,' ~consider that too much reliance was placed on these comments and it must be remembered that Mr Trace did not measure levels. Mr Copley showed a video and tendered many photographs of the 1974 flood and its aftermath. This evidence was of a general nature and illustrated that the 1974 flood had devastating and widespread impacts on people and property. However, no part of the evidence specifically included measurements of the level of the 1974 flood line on the subject land. Mr Leerson owns a property 2.6 kilometres downstream from the land. He gave evidence that the flood rose by 4510ml between 7 pm on Saturday 26 and 3 am on Sunday 27. It rose approximately 300ml between dusk on Saturday and 3 am on Sunday. He measured the rise with bricks. It peaked at 3 am on Sunday 27 January 1974, at a point between his house and a tank. It fell 50 ml between 3 am and 5 am. He gave conflicting evidence about whether it rose at 22 inches per hour or at 12 inches per hour. He did not take measurements between 5 a.m. and 9 a.m. on 27 January 1974. Not long before this hearing he measured the level at the point (between his house and the tank stand) where he said he saw the 1974 flood to, at the metric equivalent of 14'91/2". Mr Leerson also gave evidence that he visited Lot 38 at 5 a.m. and no house was visible. At 6 am the vent pipe was showing above the flood. At Lot 37 Sharon Drive he observed the water was up to the eaves. Mr Churchward measured the eaves at this property, which is 3.2 kilometres downstream of the land, at 23.35 AHD. Mr Churchward measured the level at the floor level of the residence on Mr Leerson' s property at 23. 89 AHD. The base of the tank referred to by Mr Leeson is lower than the floor level of the residence. In his oral evidence Mr Goakes estimated the peak flood level at Sharon Drive at 24 AHD. -- 17 of 18 -- 15 There is a consistency between this evidence, the measurements of Mr Churchward at Mr Leerson's property and at Lot 37 Sharon Drive, and the contention of the Respondent by Election that the 1974 flood line on the land was at 25.012 AHD. Mr Smith, another local resident who also gave evidence at the hearing, described what he saw during the 1974 flood. He said that he visited various places and saw a large body of water during the flood. His observations were from some distance and were taken some time after the peak referred to by Mr Leerson. He did not measure any levels. I find that none of the evidence presented by Mr Copley supports his assertion that the 1974 flood line on the land was at 27.760 AHD, and thus his submission that "Rural Residential A" development should not be permitted below 29.500 AHD. On the issue of potential flooding of the land, I accept the evidence led by the Respondent by Election. I am persuaded by the evidence that potential flooding of the land does not warrant refusal of the proposal, including the Conditions proposed by the Respondent. I am satisfied that the Respondent by Election has satisfied its onus of showing that the Application for rezoning should be approved. I dismiss the Appeal. -- 18 of 18 --